1.
These appeals are directed against the orders dated 27th November, 2002 in WA No. 2830/2002 and 7th November, 2002 in WANo. 2646/02 & 2690/2002 passed by the Division
Bench of the Kerala High Court whereby the Division Bench has upheld the order
passed by the learned Single Judge and dismissed the Writ Applications. The
writ appeal was filed by the appellant as well as State of Kerala. Hence, the present appeals.

2. For
the convenient disposal of these appeals, facts given in the case of R.S. Jayakumar
are taken into consideration.

The
promotion as a Ranger in the Kerala Forest Subordinate Service from among
Departmental candidates i.e. Deputy Rangers and Foresters was provided by the Kerala
Forest Subordinate Service Rules (hereinafter referred to as the Rules) framed
under proviso to Article 309 of the constitution of India.

Rule 2
prescribes the mode of appointment of Rangers which is partly by Direct
recruitment (25%), partly by appointment of Forest Apprentices (25%), partly by
promotion of Deputy Rangers/Foresters (25%) who had undergone Foresters
Training.

3. We
are concerned with the third category i.e. the appointment of Rangers by way of
promotion of Deputy Rangers/Foresters. The Rangers Training has to be
undergone in the Forest Colleges at Coimbatore or Dehradun for which the departmental candidates have to be selected
by the Kerala Public service Commission (hereinafter referred to as the KPSC).
Such selection is made in accordance with Rule 10 of the Rules, namely

(a) that
the qualification prescribed by the Government of India for admission to the
Rangers Course ,

(b) that
the candidate should have passed the qualifying examination of the KPSC. By
notification dated 30th
May, 2005, the KPSC
invited applications for selection to the Forest Rangers Course 2001-2003.

4. The
last date for receipt of application was 26th July , 2007. The number of vacancies were
notified as 5 (provisionally) subject to change according to the allotment of
seats by the Government of India. The petitioners/appellants (herein) applied
for the course along with other candidates who were on probation and were not
approved probationers/full members of the service. A certificate was given by
the Controlling Authority in favour of the candidates that they were approved
probationers (though they were not). The select list of 34 candidates prepared
by the KPSC included ineligible candidates who were probationers and not
approved probations or full members of service. As a result, the appellants who
were approved probationers could not be selected for the vacancies notified for
the course 2001-2003 and other persons who were probationers were selected.
Therefore, this action was challenged by filing a separate writ petition by the
appellants and others. A counter affidavit was filed in the main writ petition
No. 33355/2000 by the State and State accepted the contention of the appellants
herein and stated that the selection and inclusion of the contesting
respondents in the select list was not legal or justified. The KPSC also
attempted to justify its list stating that the inclusion of these candidates
were on the basis of the certificate issued by the Controlling Authority.
Learned Single Judge after hearing both the parties dismissed the writ petition
and held that it is only for the purpose of sending the selected candidates for
training and not for promotion or appointment.

The
Division Bench affirmed the order of the learned Single Judge .

Hence
the present appeals.

5. We
have heard learned counsel for the parties and perused the records. Only
limited question which is called for our consideration is whether the
respondents, the selected candidates were approved probationers or full members
in respective categories or not?

6.
Before we proceed to decide the question, it would be relevant to refer to
necessary provisions of the Kerala Rules bearing on the subject.

7.
Rule 2 of the Rules deals with the appointment, which reads as under:

(1)
(2) (3) Promotion of Dy. Rangers and Foresters trained as Rangers in either
of the Regional Forest Rangers College (4) Promotion of Dy. Rangers and
Foresters who have not been tranined as Rangers but have had training as
Foresters;

Note: :25% of ;the vacancies shall be
filled up by direct recruits who have satisfactorily completed the practical
training, 25% by appointment of Forest Apprentices who have satisfactorily
completed training in the Forest Colleges at Dehra Dun or Coimbatore and the
practical training: 25% by promotion of Dy. Rangers/Foresters who have
undergone Rangers training and 25% by promotion of Dy. Rangers/Foresters who
have undergone Foresters training.

Provided
that when required number of suitable candidates for appointment to the quota
fixed for direct recruitment are not available such vacancies shall also be
filled up by appointment of Forest Apprentices under method (2)

Note
2: Direct
recruitment and selection of Forest Apprentices and Deputy Rangers/Foresters
for training as rangers shall be made by the Kerala Public service Commission.

Note
3: No senior
trained Foresters/Deputy Rangers will be superseded by a Junior Deputy
Ranger/Forester who has not received Rangers Training on the ground that
25% posts of Rangers earmarked for trained Deputy Rangers/Foresters have
already been filled up. If suitable trained Deputy Rangers/Foresters are not
available for promotion, the vacancies allotted to them can be filled
provisionally under Rule 31(a)(i) of the General Rules for the KeralaState and Subordinate Services by promotion of Deputy
Rangers/Foresters who have undergone Foresters training in a Regional
Foresters training in a RegionalForestersSchool.

Such
persons shall be replaced immediately on persons trained as Rangers becoming
available.

Note
4: A candidate who
has secured that 1st Rank in the Regional Foresters School and has put in
more than ten years service in the Department of which 5 years are spent
as Forester will be considered eligible for promotion on the quota allocated
for promotion of Deputy Rangers and Foresters trained as Rangers.

7.
Rule 6 deals with the other qualifications: which reads as under:

6.
Other qualifications: No persons shall be eligible for appointment to the
Class, Category or Grade specified in column (1) and by the method specified in
column (2) of the Tab le below, unless he possesses the qualification specified
in the corresponding entry in column (3) thereof:- TABLE Class, Category &
Grade (1) Method (2) Qualification (3) 1.Rangers Direct Recruitment Xxxxx
Appointment from Forest Apprentice Must possess the qualification prescribed by
the Government of India from time to time for admission to the Rangers Course.

Promotion
Must possess the minimum general education of the SSLC Std. prescribed in the
Schedule to the General Rules and must have undergone either Foresters
training or Rangers Training.

Deputy
Rangers Promotion of Foresters

1.
Must possess the minimum general educational qualification of SSLC Std.
prescribed n the schedule to the General Rules and

2.
Must have undergone training in a Regional Foresters School. Foresters who
have put in 15 years of service and who are over 35 years of age shall be
exempted from the Foresters training.

8.
Rule 7 deals with the tests for appointment to the post of Rangers and Deputy
Rangers:

Note:
The Forest Officers; Examination (forest Law, forest Revenue, Office Procedure,
and Account Matters); The Forest Departmental Test and the Account Test for
Executive Officers, Part I of the Government of Madras will be treated as
sufficient Qualification in lieu of the test prescribed above in the case of
Officers allotted to the Kerala State on 1.11.1956 consequent on the Reorganisation
of States.

9.
Rule 8 deals with the probation which is reproduced as under:

8.
Probation Every person appointed to a category or class shall, from the date on
which he joins duty, be on probation in such category or class as follows:-

1. if
appointed by direct recruitment or by transfer, for a period of 2 years on duty
within a continuous period of 3 years, and

2. if
promoted, for a period of one year on duty within a continuous period of 2
years.

The
period of probation prescribed above excludes the period of training, if
any.

10.
Rule 10 deals with the promotion of Deputy Rangers and Foresters, as Rangers,
which is reproduced as under:

10.
Promotion of Deputy Rangers and Foresters, as Rangers,-

(a)
Selection of Departmental candidates for deputation to the Rangers Course shall
be made in accordance with the following rules:-

(1)
The qualifications prescribed for the Forest Subordinate from time to time by
the Government of India for admission to the Rangers Course will be
followed.

(2)
The candidate should have passed the qualifying examination held by the Kerala
Public Service Commission.

Note: The final selection from among
those who have passed the qualifying examination shall be made by the Public
Service Commission on the basis of merit after conducting a physical test:

Provided
that as between candidates, of fairly equal merit, seniority in the Department
shall be determining factor.

(b) A
candidate selected shall be deputed to the College for training for a period of
not more than two years at govt. cost.

(c)
During the period of this preliminary training and his training in the ForestCollege, he shall be paid his pay and allowances and travelling
allowance according to rules.

(d) He
shall, before he is deputed to the College, execute a bond with two sureties
for Rs. 8000/- each, and also a separate agreement in such forms as may, from
time to time, be prescribed by the State Government undertaking to serve the
said Government in the Forest Department for a period of five years after
successfully completing the training at the College.

(e)
The period of training shall be counted as service qualifying for leave,
increment, pension, etc.

(f)
The seniority among the departmental candidates appointed as Rangers shall be
determined according to the rank obtained in the Rangers College as provided in
rule 9 (A). to

(g).

11. In
pursuance of Rule 10(2), the Kerala Public Service Commission undertook the
selection of the candidates for sending them for Rangers Course and in
pursuance thereof a notification dated 30.5.2000 was issued and in that the cut
off date was 26th July, 2000. The relevant portion of the notification reads as
under:

xxxxxxx
xxxxxxx 7. Qualification:

Candidate
must have passed the Intermediate Science Examination (10+2) of any recognised
University or State Education Board or its equivalent with two or more of the
following subjects:

Mathematics,
Physics, Chemistry, Botany and Zoology xxxxxx

12. It
further lays down that the Forester/Deputy Ranger standing first in the final
examination in the State shall be exempted from the condition regarding the
competitive examination as stipulated in para 8 of the notification. Para 8 of the notification reads as under :- 8.
Competitive Examination: Candidates will be required to sit for a competitive
examination to be conducted by the Kerala Public Service Commission on the
following subjects:-

The
stands of examination in the above subjects will be of Intermediate of Science
or equivalent.

xxxxx
The minimum marks to be obtained for each paper is 40%.

Note: A Forester/Deputy Ranger standing
first in the final examination in the State Foresters training school
shall be exempted from the conditions regarding the Competitive examinations
mentioned in Para 8. He should however possess the minimum educational
qualification of SSLC.

13.
Another relevant i.e. Clause 11 of the notification reads as under:

11.
Health Certificate and Service Certificate:- The candidates shall produce
Medical Certificate issued by a Medical Officer not below the rank of Civil
surgeon/Chief Medical Officer of Health, testifying the candidates sound health
and general physical fitness for rough out-door work in the Forest Department.

Notes:-
Physically handicapped candidates are not eligible to apply for this training
course. The candidates holding the post of foresters/Deputy Rangers in the Kerala
Government Service on a regular basis and who are approved probationers/Full
members in the respective category shall submit the application alongwith a
service certificate showing the service particulars of the applicant in the
form appended.

14. As
per this note, the candidates who were approved probationers / Full Member of
service in respective category shall submit the application alongwith the
service certificate showing service particulars of the applicant in the form
appended. The form already appended reads as under:

SERVICE
CERTIFICATE TO BE PRODUCED BY THE DEPARTMENTAL CANDIDATES ALONGWITH THE APPLICATIONFORFOREST RANGERS COURSE
2001-2003.

1.
Name of candidate :

2.
Post now held :

3.
Scale of pay and pay as on the date of application :

4.
Department with circle :

5.
Total Service in Forest Department with details regarding posts held scale of
pay, duration, etc.

6,
State whether a probationer/ Approved probationer/full member:

15.
Now reading of the form as mentioned above and alongwith Item No. 6 of the form
makes it clear that the persons who were eligible to apply for this test for
undergoing Rangers training at Dehradun must be either approved
probationers/Full Members of the service. An approved probationer though has
not been defined in these rules but it has been defined in the Kerala State
Subordinate Service Rules, 1958 Sub-Rule 3 of rule 2 defines Approved
probationer reads as under:

Approved
probationer in a service, class or category means a member of that
service, class or category who has satisfactorily completed his probation and
awaits appointment as a full member of such service, class or category.

16. A
member of a service has been defined in Clause 9 which reads as under:-
Member of a service means a person who has been appointed to that
service and who has not retired or resigned, been removed or dismissed, been
substantively transferred or reduced to another service, or been discharged
otherwise than for want of a vacancy. He may be a probationer, an approved
probationer or a full member of that service.

17. In
this legal back-ground, the question now emerges is whether a person who has
been selected is in fact approved probationer or not?

As
mentioned above, in order to become the approved probationer one has to undergo
training. If appointment by direct recruitment or by transfer shall be on duty
for the period of two years on duty within a continuous period of three years
and if permitted for a period of one year on duty within a continuous period of
2 years. This includes the period of training, if any. In order to get
confirmation, one has to undergo certain required tests i.e. he has to pass
certain departmental tests as laid down in the Rules, thereafter he acquires an
eligibility for the confirmation. In case, he fails to pass the desired tests
as laid down in the rules, then he will not be eligible for confirmation. The
tests are provided in Rule 7, i.e., he has to undergo clerical test comprising
of papers namely, Forest Acts and Rules and Forest Code and Departmental Rules.
After completing successfully these tests then alone he acquires the
eligibility to be confirmed on the post. In case he fails to pass then he
cannot be confirmed on the post. The approved probationer as has been defined
in the Rules of 1958 clearly says that the approved probationer means the
Member of that service or who has satisfactorily completed its probation and
awaits appointment as a full member of such service.

Therefore,
in order to become an approved probationer it is not simple, one has to
successfully pass all departmental tests. The probation is of duration of two
years out of three years of continuous service and he should successfully pass
departmental test then of course, he can be eligible for promotion and become a
member of service. As per the circular issued by the KPSC, the persons eligible
for tests are persons either who have come on the category of approved
probationer or they are the member of the service. It is the admitted position
that the respondents were not appointed either as approved probationer or as a
member of the service but they were only probationers and permitted to appear
in the selection for undergoing Rangers training at Dehradun by the
Commission. Therefore, the grievance of appellants was genuine that these
persons who were not eligible to appear in the tests were permitted to appear
on the basis of so called certificate issued by the controlling authority. In
fact the Public Service Commission has justified their appearance on the basis
of so called certificates given by the Controlling authority but that
certificate which was issued by the Controlling authority was not correct. The
State of Kerala in its affidavit in opposition has
categorically stated that certificate was wrongly issued by controlling authority.
But learned single Judge proceeded to decide the matter treating that since
they were probationers and there is no such provision in the Rules that for
permitting to appear in the Public Service Commission tests one has to be an
approved probationer.

Therefore,
the learned Single Judge held that the probationers were eligible to be
included in the select list on their successfully qualifying competitive test.
We regret, this approach was totally erroneous on the part of the learned
Single Judge as well as of the Division Bench. The Public Service Commission
once laid down the eligibility being an approved probationer or member of
service, then each incumbent has to fulfil that eligibility or otherwise he
will not be permitted to appear in that test. The task of selecting the persons
for training is entrusted to the Public Service Commission as required under
sub-Rule 2 of Rule 10 & the Public Service Commission laid down the
Condition of eligibility, one has to abide by it. There cannot be any departure
from that. The Public Service Commission was competent body to make the
selection of persons for training and, then the selection has to be made as per
the condition in the advertisement. It is not correct to say that since rules
do not say that only approved probationers and service members shall be
eligible for test, therefore, condition laid down by the Public Service
Commission is alien to Rules. The view taken by the Courts below is absolutely
erroneous. Once the condition of selection is laid down then all the candidates
have to fulfil the same and no departure from that is possible. One who lays
down the procedural sword then same shall be slain by that. Once a body has
been entrusted the job of selection & lays down the criteria which is not
contrary to the Rules, in that case only eligible candidates should be selected
as per conditions laid down by the selection body. The KPSC has laid down the
eligibility that candidates should be approved probationers or members of
service, which is not contrary to Rules, as Rules, nowhere lays to the
contrary.

18.
There appears to be a rationale behind it if incumbent is only probationer
& he is not confirmed on his failure to qualify departmental tests then he
has to be discharged from service. If the candidate successfully passes the
departmental examination and vacancies are available then he can straightway be
confirmed & on confirmation he becomes the member of the service. In case
vacancies are not available then after successfully passing of examination he
will be treated as approved probationer. Once he is approved probationer, it
means that he has acquired eligibility to be confirmed as soon as vacancies are
available. But if one is not a member of service or approved probationer then
just because he is probationer he cannot be considered for sending on the
training. Therefore, the idea behind that incumbent be a member of a service
i.e. substantive or permanent or who has acquired eligibility for being
appointed as permanent member should be sent for training appears to be well
founded. As the State Exchequer has to spend money for training and they cannot
afford to spend money on a person who is probationer/temporary. There was a
rationale behind this condition and is not inconsistent with Rules. In this
view of the matter, the decision of learned Single Judge and the Division Bench
cannot be sustained.

19.
Our attention was invited to the case of Jose Mathew who is also respondent
herein. He belongs to exempted category from the competitive test as he stood
first in the forester training.

He need
not to go for the competitive test because of the Clause 8 of the Note of the
advertisement.

20.
However, the conditions laid down by the Public Service Commission in their
advertisement have to be fulfilled by all the candidates. As it is more than
apparent that the respondents except Jose Mathew did not fulfil the condition
required in the advertisement issued by the Public Service Commission for
sending the candidates for training at Dehradun.

Therefore,
their selection cannot be sustained. But they were sent for training and they
have undergone the training and sufficient amount has been spent on their
training. But they were not eligible to be sent for the training. It is
declared that they will not be entitled to avail benefit of their training qua
the petitioners/appellants. We allow these Appeals and set aside the order of
the High Court & hold that the selection of the respondents for sending
them for training was bad and that cannot be used in the service career vis a vis
the petitioners/appellants. However, the training undergone by them cannot be
withdrawn but they will not get the benefit of it vis a vis the
petitioners/appellants and this will not permit them to have a march over the
petitioners/appellants.

21.
All the appeals are accordingly allowed with no order as to costs.